53 F.

3d 1242

UNITED STATES of America, Plaintiff-Appellee,

v.
Rafael Macario FONSECA-MACHADO, a/k/a Elvis Rafael
Fonseca-Machado, Defendant-Appellant.
No. 94-4585.

United States Court of Appeals,

Eleventh Circuit.
June 7, 1995.

Stewart G. Abrams, Asst. Federal Public Defender, Miami, FL, for

appellant.
Kendall B. Coffey, U.S. Atty., Charene Sreenan, Linda Collins Hertz,
Anne M. Hayes, Dawn Bowen, Asst. U.S. Attys., Miami, FL, for appellee.
Appeal from the United States District Court for the Southern District of
Florida.
Before COX, Circuit Judge, HILL and GARZA* , Senior Circuit Judges.
PER CURIAM:

Appellant Rafael Macario Fonseca-Machado appeals the district court's refusal

to dismiss his one-count indictment, returned July 13, 1993, for knowingly and
willfully committing aircraft piracy by use of force, violence, threats, and other
forms of intimidation on or about August 14, 1980, in violation of 49 U.S.C.
Sec. 1472(i) and 18 U.S.C. Sec. 2, on the ground that it was barred by the
statute of limitations, 18 U.S.C. Sec. 3282.1 The Government contends that the
statute was tolled, pursuant to 18 U.S.C. Sec. 3290, because Fonseca-Machado
was a fugitive from justice during the thirteen year period.2 We agree.

I.
2

Fonseca-Machado arrived involuntarily in the United States from Cuba in 1980

as part of the Mariel boat lift. After one month in Miami, he learned his mother

was ill. In order to return to Cuba, he and a companion, using gasoline and
cigarette lighters, hijacked a National Airlines DC-10 flight bound for San
Juan, Puerto Rico from Miami and ordered the crew to fly the aircraft to Cuba.3
Upon arrival in Havana, Fonseca-Machado was arrested by Cuban authorities
and spent the next five years in prison. After his release from prison in 1985,
Fonseca-Machado lived openly in Cuba under his own name.
3

In June 1993, nearly thirteen years after the hijacking, Fonseca-Machado and
two companions undertook to travel from Cuba to the United States by raft.
They were rescued by a United States Coast Guard cutter off Key West,
Florida, and taken to the nearby base. A records check revealed an outstanding
FBI arrest warrant for the 1980 hijacking offense. Fonseca-Machado was
indicted within thirty days.

II.
4

The district court's determination that Fonseca-Machado was a fugitive from

justice tolling the statute of limitations is a question of fact. Donnell v. United
States, 229 F.2d 560, 562-65 (5th Cir.1956). Mere absence from the
jurisdiction in which a crime occurred does not render the suspect a fugitive
from justice; he must be found to have absented himself from the jurisdiction
with the intent to avoid prosecution. Id.

Fonseca-Machado claims that he was not a fugitive from justice because the
Government cannot show that he intended at the time he departed the United
States to avoid prosecution. The Government claims that a person who departs
for a legitimate reason from the jurisdiction in which his crime was committed
but who later remains outside that jurisdiction for the purpose of avoiding
prosecution is a fugitive from justice.4

III.
6

The Government urges us to extend the doctrine of constructive flight, for the
purpose of tolling the statute of limitations under Sec. 3290, to this circuit. We
decline to do so as the facts in this case do not warrant such action. The record
here does not depict a case of constructive flight. It depicts actual flight.

Once Fonseca-Machado, after committing the crime of air piracy, gave

direction to the National Airlines pilot to fly, not to Puerto Rico or anywhere
else within the United States' jurisdiction, but to Cuba, he became a fugitive
from justice. We hold that his travel, in continuing to perpetrate the crime of air
piracy, constitutes, not constructive flight, but actual flight with intent to avoid

prosecution, sufficient enough to toll the statute of limitations under Sec. 3290.
IV.
8

For this reason, we affirm the district court's denial of Fonseca-Machado's

motion to dismiss the indictment pursuant to the statute of limitations.

AFFIRMED.

Honorable Reynaldo G. Garza, Senior U.S. Circuit Judge for the Fifth Circuit,
sitting by designation

18 U.S.C. Sec. 3282 provides:

Except as otherwise expressly provided by law, no person shall be prosecuted,
tried, or punished for any offense, not capital, unless the indictment is found or
the information is instituted within five years next after such offense shall have
been committed.

18 U.S.C. Sec. 3290 states:

No statute of limitations shall extend to any person fleeing from justice.

The flight was carrying approximately 242 adults and children

This theory, known as the doctrine of constructive flight, has been used in other
circuits for the purpose of tolling the statute of limitations pursuant to Sec.
3290. See United States v. Catino, 735 F.2d 718 (2d Cir.), cert. denied, 469
U.S. 855, 105 S.Ct. 180, 83 L.Ed.2d 114 (1984); United States v. Gonsalves,
675 F.2d 1050 (9th Cir.), cert. denied, 459 U.S. 837, 103 S.Ct. 83, 74 L.Ed.2d
78 (1982). This court has applied the doctrine in a non-Sec. 3290 context. See
Schuster v. United States, 765 F.2d 1047, 1050 (11th Cir.1985)